Lee v. City of Casey
| Decision Date | 27 October 1915 |
| Docket Number | No. 10167.,10167. |
| Citation | 269 Ill. 604,109 N.E. 1062 |
| Parties | LEE et al. v. CITY OF CASEY et al. |
| Court | Illinois Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Clark County; Wm. B. Scolfield, Judge.
Suit by N. B. Lee and others against the City of Casey and others. From a decree dismissing the bill, the complainant named, and certain other complainants appeal. Reversed and remanded.
John J. Arney, of Casey, for appellants.
Graham & Snavely, of Marshall, for appellees.
Hugh T. Bragg and John Carr, as taxpayers and on behalf of themselves and all others similarly situated, filed their bill at the November term, 1912, of the circuit court of Clark county, against the city of Casey and other defendants, to enjoin the levy and collection of certain taxes which the bill alleged were illegal. At that term of court the bill was dismissed as to John Carr. At the July term, 1913, Bragg filed a petition stating that other taxpayers of the city of Casey, including N. B. Lee, William H. Schmoyer, and C. B. Orsborn, the appellants, desired to join with him as co-complainants; that he, together with the other parties named in the petition, had prepared an amended and supplemental bill in which said parties were joined as co-complainants, and asking leave to file such amended and supplemental bill. Leave was granted, and the amended and supplemental bill was filed. To this bill defendants interposed a demurrer, which was overruled. The bill was then answered, and the cause referred to the master in chancery. On the last day of the November term, 1914, Bragg and all the others who were made co-complainants by the amended and supplemental bill, except appellants, asked that the suit be dismissed as to them, and an order dismissing the suit as to those complainants was entered. During vacation, between the November and the April terms, appellees filed a motion to dismiss the cause nunc pro tunc as of the 13th of November, being the date of the dismissal as to Bragg and the other complainants, for the reason that the order entered at that time dismissing the cause as to Bragg, the only remaining original complainant, was, in effect, a final dismissal and termination of the suit. Upon the convening of the April term this motion was allowed, and the cause dismissed nunc pro tunc as of November 13, 1914. This appeal has been perfected to review that action of the court.
The appellees have filed a motion to dismiss the appeal for the reason that there were seven complainants in the cause at the time it was dismissed, that a joint appeal was prayed and allowed, and that only three of the complainants, the appellants here, executed the appeal bond and joined in the appeal. This motion was taken with the case. The theory upon which this motion is made is that the suit was, in fact, dismissed upon the dismissal of Bragg, the only remaining original complainant, on November 13, 1914, and, as it involves a determination of the main question presented for review by this appeal, it will not be treated or discussed separately.
[1] It is contended on the part of the appellees that no order of court was ever entered granting leave for new parties to join as co-complainants. While it is true that the record does not disclose that any separate and specific order was entered allowing appellants and the other additional co-complainants to join, the petition of Bragg set up that they desired to join as co-complainants, and asked that they be permitted to do so. It also alleged that the amended and supplemental bill making the appellants and others co-complainants was prepared and ready to be filed, and asked leave to file the same. The record discloses that this amended and supplemental bill was filed by leave of court. This necessarily included leave to appellants and the others desiring to become co-complainants to join with Bragg in the bill.
[2] Appellees cite and discuss authorities which state the rule as to the circumstances under which courts will permit a change of parties to an action or the substitution of a new party for one in whose name the suit was brought. These cases, and the principles they involve, are not applicable to the question presented for our consideration in this case. Here Bragg and Carr...
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